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[2024] ACTSC 1
Supreme Court of the ACT
2024-01-03
Baker J
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: DPP v Black (a pseudonym) Citation: [2024] ACTSC 1 Hearing Date: 3 January 2024 Decision Date: 3 January 2024 Before: Baker J Decision: See [16]. Catchwords: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application for witness to give pre-trial evidence – Rule 6813 of the Court Procedures Rules 2006 (ACT) – where witness is terminally ill – application granted. Legislation Cited: Court Procedures Rules 2006 (ACT) rr 6813, 6816, 6817, 6818, 6819, 6822. Evidence (Miscellaneous Provisions) Act 1991 (ACT) ss 32, 92, 94(1)(b). Cases Cited: DPP v Austin (No 5) [2023] ACTSC 327 Parties: Director of Public Prosecutions (Crown) Julius Black (a pseudonym) (Accused) Representation: Counsel B Morrisroe (Crown) T Jackson (Accused) Solicitors ACT Director of Public Prosecutions ACT Legal Aid (Accused) File Number: SCC 271 of 2022 SCC 108 of 2023 BAKER J: EX TEMPORE REASONS (REVISED) Introduction
On 3 January 2024, the accused pleaded not guilty to three counts of indecent assault on a male (Counts 1, 2 and 3), one count of act of indecency on a person under 10 years (Count 4), and one count of sexual intercourse with a person under 10 years (Count 5). The accused pleaded guilty to two counts of indecent assault on a female (Counts 6 and 7). The trial for counts 1 to 5 is presently listed to commence on 4 March 2024.
By an application filed on 22 December 2023, the Director of Public Prosecutions (“the Director”) seeks an order that a prosecution witness have her evidence taken otherwise than at trial, pursuant to rule 6813 of the Court Procedures Rules 2006 (ACT).
The witness has terminal cancer. She has a prognosis of weeks to months to live. The application is made so that the witness’ evidence may be preserved. This application came before me urgently as duty judge today.
For the following reasons, I am satisfied that it is appropriate to make the order sought.
Consideration
Rule 6813 of the Court Procedures Rules relevantly provides as follows: 6813 Order for taking evidence otherwise than at trial (1) In any civil or criminal proceeding in the court, the court may, on the application of a party to the proceeding, make an order— (a) for the examination of a person on oath at a place in or outside the ACT (including outside Australia) before a person appointed by the court; or Note Oath includes affirmation (see Legislation Act, dict, pt 1). …
An order may be made under r 6813(1) of the Court Procedure Rules for an examination “only if it appears in the interests of justice to make the order”: r 6813(2) of the Court Procedure Rules.
In deciding whether it is in the interests of justice to make the order, r 6813(3) requires that the court have regard to the following matters— (a) whether the person to be examined is willing or able to come to the ACT to give evidence in the proceeding; and (b) whether the person will be able to give evidence material to any issue to be tried in the proceeding; and (c) whether, having regard to the interests of the parties to the proceeding, justice will be better served by making or refusing to make the order. See r 6813(3).
Rule 6813 is not frequently invoked in criminal proceedings, because the provisions of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) (“EMP Act”), which authorise the taking of pre-recorded evidence in specified circumstances, are typically utilised.
In the present case, the witness’s evidence could have been taken under s 92 of the EMP Act, which provides for evidence to be taken from a person who is “dangerously ill”. However, the difficulty with s 92 in the present case is that evidence recorded under that provision may only be admitted if the witness dies or is “because of illness, unable to give evidence”: s 94(1)(b) of the EMP Act. Whilst it is reasonably anticipated that the witness’s illness will progress to a state where she will not be able to give evidence at the trial in March, that outcome is not certain. It would be entirely unsatisfactory to require a witness to give evidence on a second occasion at trial, simply because the witness’s condition did not worsen as feared by their treating doctors. For this reason, counsel for the Director and counsel for the accused considered it to be more appropriate for the evidence to be taken under r 6813. Ultimately, the application for an order under r 6813 was the only application that was pressed before me.
It is clear from the introductory words of the rule that the procedure for which r 6813 provides is available in criminal proceedings. I note that the r 6813 procedure was recently utilised in criminal proceedings where a witness was expected to be in Croatia (a country to which Australia does not have mutual assistance arrangements) for the duration of the criminal trial: see DPP v Austin (No 5) [2023] ACTSC 327. I do not consider that the fact that another process might be available to facilitate the taking of evidence in these circumstances has the effect of rendering r 6813 unavailable.
I am satisfied that it is appropriate to make the order sought in the present case. The witness is a complaint witness in respect of counts 1, 2 and 3 with which the accused is charged. Such evidence may be of importance both to the cases of the prosecution and the accused. As noted above, the evidence before me demonstrates that the witness is terminally ill. A letter from her treating doctor states that her prognosis is “weeks to months”. The trial is listed to commence in two months.
Whilst the witness is not able to attend the ACT, she is able to give evidence from the Australian Federal Police Headquarters in Queensland via an audio-visual link. Her evidence can be taken remotely pursuant to an order made under s 32 of the EMP Act. The taking of evidence under r 6813 will enable the witness’s evidence to be taken on oath (or affirmation) and will permit the accused an opportunity to cross-examine the witness.
Accordingly, I am satisfied that justice to both parties will be best served by making an order under r 6813 for the witness’s evidence to be given otherwise than at trial.
Procedure
A judicial officer may be appointed to undertake an examination ordered under r 6813, but, where that officer is a judicial officer of the Supreme Court, the “agreement” of the Chief Justice is required: see r 6816 of the Court Procedure Rules. The Chief Justice has agreed to my appointment as the examiner in these proceedings.
With the consent of both parties, I propose to conduct the examination as closely as possible to the procedure generally utilised at trial, in accordance with r 6819(4) of the Court Procedure Rules. Accordingly, although the rules appear to envisage that the examiner will ask questions of the witness (see, for example, r 6817), the examination in chief will be conducted by the prosecutor, after which the witness will be cross-examined by counsel for the accused.
Recommendation for legislative amendment
Orders
For the above reasons, the following orders are made: (1) I order that the prosecution witness, [redacted], give evidence to the court by audiovisual link pursuant to s 32 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT). (2) I order that [redacted] have her evidence taken otherwise than at trial pursuant to r 6813 of the Court Procedures Rules 2006 (ACT). (3) With the agreement of the Chief Justice of the ACT Supreme Court and the consent of the accused, I appoint myself as examiner under r 6816 of the Court Procedures Rules 2006 (ACT). (4) With the consent of the prosecution and the accused, I set the time and place of the examination as today, 3 January 2024, at 11:15am. (5) With the consent of the prosecution and the accused, I dispense with the notice requirements under r 6818 of the Court Procedures Rules 2006 (ACT). (6) I direct that the evidence of [redacted] be recorded by audio-visual link and that a transcript be made of that evidence, in accordance with r 6822 of the Court Procedures Rules 2006 (ACT). (7) I order that there be no order as to the costs of the application (noting that the accused’s counsel has indicated that no order for costs has been sought).
In view of the matters discussed in [9] above, I recommend that this judgment be forwarded by the Registrar to the Attorney General of the Australian Capital Territory, so that consideration may be given as to whether s 94 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) should be amended so that a witness’s evidence that is recorded under s 92 of that Act may be admitted in the trial, regardless of whether the witness’s condition renders ultimately them “unable” to give evidence at trial.
I certify that the preceding seventeen [17] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Baker Associate: Date: 4 January 2024
DPP
Black